Criminal Procedure

APolice may search things at the same time and place as the arrest. The search is limited to the defendant’s “wingspan” (anything the defendant can reach). The police may also perform a protective sweep of the area, but only to look for other people (might pose a threat).

QThe police arrest Jake because he was walking suspiciously in a neighborhood he didn’t live in. They pat him down and find an illegal gun. Is the gun admissible at trial?

ANo. The arrest must be valid for the search to be valid. In this case there is no probable cause to arrest (reasonably trustworthy facts and circumstances sufficient so that a reasonable person would believe that the suspect has committed or is committing a crime), so the search of Jake’s wingspan is invalid and the evidence is subject to the exclusionary rule.

QThe police have probable cause to arrest X for driving with a suspended license. They recognize X driving in his car, and pull him over. Searching the car, they find some drugs in the passenger seat, and a gun in the trunk. Is either the gun or the drugs excludable at trial on Fourth Amendment grounds?

AThe gun is excludable, since it was beyond X’s wingspan – which only extends to the cabin of the car. The trunk is outside of X’s wingspan. The drugs are admissible because they were within the wingspan.

QThe police have probable cause to arrest X. They find him at his house, where he voluntarily opens the door for them and they immediately arrest him. The police then search the house and find a gun in a drawer in the bedroom. Is the gun admissible at trial?

AThe gun is inadmissible since it was outside of the defendant’s wingspan. Had it been in the anteroom where he was arrested, it would arguably be admissible.

NOTE: Had it been in plain view, on the bed or kitchen counter for instance, it might have been admissible as incident to a protective sweep.

QWhen can the police search a vehicle after arresting one of the vehicle’s occupants?

AA vehicle search incident to a recent occupant’s arrest is only permissible (a) to search the area under the arrestee’s immediate control for weapons and/or destructible evidence, and(b)where there is a reasonable belief that a search of the vehicle will yield evidence of the offense of arrest.

QThe police pull X over for speeding. After issuing X a ticket, the police search him and the cabin of the car and find a bag of drugs. Is the bag of drugs admissible?

AThe drugs are not admissible. Once the police decide to issue a ticket, there is no probable cause to arrest, and therefore the search is illegal without a warrant.

QSame facts as the previous card except instead of ticketing X, the police simply arrest him and place him in the back of the police cruiser after pulling him over, and then perform a search of the car’s cabin. Is the bag of drugs admissible?

AThe drugs are not admissible. Because the arrestee was already secured in the back of the police cruiser a search for weapons or destructible evidence was not permissible since the vehicle was no longer in the arrestee’s immediate control (no danger existed that arrestee would access a weapon or destroy evidence), and there could not have been a reasonable belief that a search of the vehicle would yield evidence of the offense of arrest (impossible to find evidence of speeding by searching a vehicle.)

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About the author

Michael Elson is a 2006 graduate of the Benjamin N. Cardozo School of Law, where he earned a Juris Doctor with the distinction of magna cum laude. During his time at Cardozo he served as an Articles Editor on the Cardozo Law Review.

After graduating law school Michael worked at the New York offices of Heller Ehrman LLP, and in 2008 moved to Oregon to practice at a small firm.

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